Zhao v. U.S. Dept. of Justice

Citation265 F.3d 83
Decision Date01 August 2000
Docket NumberDocket No. 00-4022
Parties(2nd Cir. 2001) KE ZHEN ZHAO, PETITIONER, v. UNITED STATES DEPARTMENT OF JUSTICE, JANET RENO, ATTORNEY GENERAL; UNITED STATES DEPARTMENT OF JUSTICE, EXECUTIVE OFFICE FOR IMMIGRATION REVIEW, BOARD OF IMMIGRATION APPEALS, OFFICE OF THE IMMIGRATION JUDGES; UNITED STATES DEPARTMENT OF JUSTICE, DORIS MEISNER, COMMISSIONER OF IMMIGRATION AND NATURALIZATION SERVICE; AND EDWARD J. MCELROY, DISTRICT DIRECTOR, RESPONDENTS
CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Bruno J. Bembi, Hempstead, New York, for Petitioner-Appellant.

Diogenes P. Kekatos, Assistant United States Attorney, New York, New York (Mary Jo White, United States Attorney, Jeffrey Oestericher, Assistant United States Attorney, Southern District of New York, New York, New York, of counsel), for Respondents-Appellees.

Before: Cardamone, Pooler, and Katzmann, Circuit Judges.

Cardamone, Circuit Judge

Petitioner Ke Zhen Zhao is a national of the People's Republic of China (PRC) who seeks asylum in the United States on account of China's "one family-one child" policy. He appeals from the denial of his motion to reconsider his application after the Board of Immigration Appeals (Board) affirmed an adverse ruling by an immigration judge that rejected his asylum petition. Respondents are the United States Attorney General, the Board, the Office of Immigration Judges, the Commissioner of the Immigration and Naturalization Service (INS) and the District Director of the INS.

When the immigration judge made the adverse ruling on petitioner's asylum application, and the Board denied his motion to reconsider its affirmance of that ruling, these administrative judges were exercising their discretionary authority. Courts ordinarily defer to such discretionary administrative determinations, lest a court substitute a judicial view for an agency's experience and expertise. But granting deference to administrative tribunals does not mean we have clothed their rulings with that kind of power expressed in the maxim the "king can do no wrong." To the contrary, administrative tribunals are not royal judges, and their rulings are not unfettered; instead they are constrained to decide cases in a non-arbitrary manner. Thus, when a court is persuaded in a given case, such as this one, that an administrator has acted arbitrarily or capriciously, the ordinary entitlement to judicial deference disappears.

BACKGROUND
Entry Into the United States

When Zhao arrived in the United States on February 26, 1992 at Honolulu International Airport, he was questioned through an interpreter by an INS official. He acknowledged that he understood the questions asked him and admitted to using a false passport from Korea under a false name. Zhao said he obtained the passport in Bangkok, Thailand from a person unknown to him, and that while he paid $3400 to get to Hawaii, his brother agreed to pay another $20,000 upon his arrival in New York. Petitioner told the INS official he came to the United States to find work.

That same day the INS served written notice on Zhao that he would be subject to exclusion proceedings and possibly deportation. He was charged with: intending to immigrate for employment purposes without certification from the Secretary of Labor, 8 U.S.C. § 1182(a)(5)(A) (1994 & Supp. V 1999) (substantially unchanged from 1992 statute); seeking entry into the United States through fraud, id. § 1182(a)(6)(C)(i) (1994 & Supp. V 1999) (same); and lacking valid entry documents, id. § 1182(a)(7)(A)(i)(I) (1994 & Supp. V 1999) (same). After two years of adjournments, a hearing on those charges, at which petitioner had counsel, was held on February 28, 1994.

Asylum Application

Prior to that hearing, Zhao had filed an application in September 1992 seeking asylum in the United States and the withholding of his deportation. In a statement attached to the application, he indicated he left China in November 1991 "to escape the threats and persecution of the Chinese Communist government and to avoid imprisonment and sterilization as a consequence of my political views and supposedly anti-government activities regarding the government's Birth Control policy."

According to petitioner, after his second son was born the government imposed a fine that he could not afford to pay. Troops attempted to arrest him several times. When higher-level officials were called in to effect his arrest, Zhao -- fearing imprisonment and forcible sterilization -- went into hiding for three years.

He claimed in his application that were he to return to China, officials there would consider him guilty of two criminal acts --opposing and violating the birth control policy and leaving China without permission. As punishment, he anticipated being sentenced to prison or a labor camp and being forcibly sterilized.

Exclusion Proceedings

The immigration judge who presided over petitioner's exclusion hearing did so with the help of an interpreter. After petitioner conceded the charges lodged against him by the INS, the immigration judge turned the focus of the hearing to Zhao's asylum and withholding of deportation application. In support of that application Zhao's counsel filed copies of his: (1) marriage certificate, (2) household registration booklet, (3) birth certificate, (4) resident I.D. for the People's Republic of China, and (5) family planning policy registration card indicating that his wife underwent tubal ligation. The government, for its part, submitted petitioner's false passport and his statement to the INS official on his date of entry into the United States.

Only petitioner testified at the hearing. He stated that he had worked in construction for a private company in the Fujian province of China. His wife became pregnant four times during their marriage. Her first pregnancy resulted in a miscarriage. She gave birth to a son in 1985. Her third pregnancy was aborted due to health problems, and her fourth resulted in the birth of a second son in 1989.

When asked whether he and his wife could have more children, Zhao answered that his wife had been sterilized on September 28, 1989. Referring to China's policy of allowing only one child per family, he stated that his wife was ordered by the Chinese government to undergo the sterilization procedure. The order was first in writing, but local officials came to their house later to tell her she had to go for the procedure.

Petitioner claimed he voiced his opposition to the sterilization and promised not to have any more children, but described the officials as insistent that his wife be sterilized. Zhao testified that he was fined 20,000 yuan in 1989 (about $2500-$3500 in U.S. dollars) just prior to his wife's sterilization procedure, but could not afford to pay that amount. He further testified that local officials tried to arrest him for his failure to pay the fine and because he had not immediately agreed to his wife having the procedure. Petitioner escaped arrest by leaving the Fujian province soon before his wife underwent sterilization.

On cross-examination, he acknowledged that his primary reason for coming to the United States was to find work. He said that before flying to Hawaii, he had worked for two years in Nancheng, located in China's Jiangxi province, and then moved to the Hunan province. But in Hunan, he said he was not allowed to work for reasons supposedly linked to his opposition to the birth control policy.

The government also asked whether petitioner's wife paid the fine levied against him. Petitioner answered she did not have to pay because she was sterilized. Upon being asked what he expected if he returned to China, Zhao answered that he thought he would be arrested for violating the birth control policy, even though his wife had been sterilized. When questioned why he believed Chinese officials were still after him, he explained that his wife and other contacts in China had so warned him. Moreover, he explained that emigrants who returned to China are routinely arrested, punished and fined.

Decision of the Immigration Judge

Upon the conclusion of petitioner's testimony, the immigration judge admitted into evidence the U.S. State Department's general advisory comments regarding country conditions on asylum claims from Chinese immigrants. He then rendered an oral decision in which he first ruled that with petitioner having conceded the charges alleged by the INS, "excludability has been established by clear and convincing evidence." As such, Zhao could remain in this country only if his asylum and withholding of deportation application were granted.

After summarizing petitioner's hearing testimony, the immigration judge noted "[t]he credibility of the applicant is of extreme importan[ce] in assessing his claim." The judge found petitioner's testimony not to be credible insofar "as it refers specifically to his application for asylum which in no way addresses any concern about his wife's sterilization." He pointed out that the application made no mention of petitioner's wife undergoing sterilization, even though petitioner submitted documentation showing she had undergone an oviduct ligation. The judge further highlighted the fact that when Zhao arrived in the United States, he indicated his only purpose in immigrating was to find work. Again, the judge observed that petitioner did not appear to have experienced troubles with the Chinese government, as evidenced by the two years he spent working in Nancheng.

Referring to the report of the State Department, he also noted that in rural areas of China, where petitioner lived, having two...

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